In a landmark decision in June, the U.S. Supreme Court unanimously ruled three appointments made by President Obama in 2012 to the National Labor Relations Board (NLRB) were unconstitutional. This decision was the culmination of two years of litigation waged by NRCA and other business groups and is a major victory in the fight against excessive government regulation of the private sector.
On Jan. 4, 2012, President Obama, facing opposition from Senate Republicans regarding his candidates, appointed three new members to the NLRB as "recess" appointments, bypassing the typical Senate confirmation process for nominees to executive branch positions. Under the Constitution, presidential nominations are subject to scrutiny by a Senate committee and, ultimately, a majority vote in the Senate to be confirmed. The Constitution also allows presidential nominees to bypass Senate confirmation and serve for a limited time if the president appoints them when the Senate is in recess.
However, the Senate was in a pro forma session at the time of the NLRB appointments. During pro forma sessions, only a few Senators are present and little, if any, business is conducted. However, the Senate may (and does on occasion) pass major legislation by unanimous consent during such sessions. When making the appointments, President Obama argued Congress was effectively in recess because minimal work is conducted during pro forma sessions.